Holt v Wynter

[2000] NSWCA 143

Reported Decision: [2000] 49 NSWLR 128
[2000] 31 MVR 467

New South Wales

Court of Appeal

CITATION:	Holt v Wynter [2000] NSWCA 143 revised - 26/06/2000
FILE NUMBER(S):	CA 40639/98
HEARING DATE(S):	26 November 1999
JUDGMENT DATE:	26 June 2000
PARTIES :	Kristy Maree Holt v Darren Maurice Wynter
JUDGMENT OF:	Priestley JA at 1; Meagher JA at 109; Handley JA at 110; Sheller JA at 111; Brownie AJA at 123

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 2651/98
LOWER COURT JUDICIAL OFFICER :	Acting Judge Cantrill

COUNSEL:	Appellant - L. King SC / R. Duncan Respondent - J.D. Hislop QC / D.J. Russell
SOLICITORS:	Appellant - Cater & Blumer, Griffith (City Agents: Uther Webster & Evans) Respondent - GIO Australia Ltd
CATCHWORDS:	Motor Accidents - leave to commence proceedings - principles governing exercise of discretion - shether Salido v Nominal Defendant consistent with Brisbane South Regional Health Authority v Taylor
LEGISLATION CITED:	NSW Limitation Act 1969 NSW Motor Accidents Act 1988 Motor Accidents Amendment Act 1995 Queensland Limitation of Actions Act 1974 Suitors Fund Act 1951
CASES CITED:	Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 House v The King (1936) 55 CLR Jago v District Court (1989) 168 CLR Kinnas v Petricca, unreported, 1 December 1998 Longman v R (1989) 168 CLR R v Abbott NSWCCA 5 July 1993 R v Geoghegan (1999) NSWCCA 20 R v Johnston NSWCCA 31 July 1998 Salido v Nominal Defendant (1993) 32 NSWLR Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 Sydney City Council v Zegarac (1998) 43 NSWLR
DECISION:	Appeal allowed

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40639/98
DC 2651/98

PRIESTLEY JA
MEAGHER JA
HANDLEY JA
SHELLER JA
BROWNIE AJA


Monday, 26 June 2000

HOLT v WYNTER

MOTOR ACCIDENTS - leave to commence proceedings - principles governing exercise of discretion - whether Salido v Nominal Defendant consistent with Brisbane South Regional Health Authority v Taylor

The appellant was injured in a car accident in February 1992. Shortly afterwards she lodged a claim through her solicitor with the relevant insurer which was accepted more than six months from the date of the accident. The appellant changed solicitors five times. The progress of her claim was impeded by difficulties in obtaining her file from the first and second solicitors.
The appellant was informed by her third solicitor more than five years after her accident that s 52 of the Motor Accidents Act 1988 provided that a person was not entitled to commence proceedings more than three years after the date by which their claim had to be made except with the leave of the court. In 1998 the appellant applied to the District Court for leave to commence proceedings against the respondent. Her application was refused on the grounds that the delay had caused significant prejudice to the defendant. In particular the Judge found that the respondent’s insurer had been prejudiced by the fact that it had not been sufficiently apprised of the nature of the claim to arrange a medical examination until 1996. The appellant argued that in determining whether prejudice would result to the respondent if the application was granted the Judge had adopted a wrong approach.
HELD , allowing the appeal (1) (By majority, Priestley JA dissenting) Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 decided that an application for an extension of time under limitation legislation should be refused if an extension would result in significant prejudice to a defendant. This is consistent with the decision of this Court in Salido v Nominal Defendant (1993) 32 NSWLR 524. (2) (unanimously) The respondent would not suffer significant prejudice if the application was granted. The insurer had received notice of the claim at the appropriate time and made an offer of settlement. The insurer had had the appellant medically examined and there was no evidence that the insurer’s doctors were hampered by lack of medical records or the delay.

ORDERS

(1) Appeal allowed;

(2) Order 1 of District Court set aside; order 2, that the plaintiff pay the defendant’s costs of the application, confirmed; such order 2 not to be enforced prior to final judgment in the action without the leave of the District Court;

(3) In lieu thereof, order that the appellant have leave to commence proceedings against the respondent for damages for injury suffered in a motor vehicle on 8 February 1992 pursuant to s52(4) of the Motor Accidents Act 1988;

(4). The respondent to pay the appellant’s costs of this appeal but to have a certificate under the Suitors Fund Act 1951 if so qualified.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40639/98
DC 2651/98

PRIESTLEY JA
MEAGHER JA
HANDLEY JA
SHELLER JA
BROWNIE JA

Monday, 26 June 2000

HOLT v WYNTER

1    PRIESTLEY JA:

Background to appeal .
By notice of motion dated 20 March 1998 filed in the District Court, Miss K.M. Holt applied for leave to commence proceedings against Mr D. Wynter for damages for injuries she had suffered in a car accident on 8 February 1992.

2    On 20 July 1998 Acting Judge Cantrill dismissed the application with costs. 3    On 22 March 1999 Powell and Giles JJA of this court granted Miss Holt leave to appeal. Powell JA gave short reasons in which he said that it was at least arguable on the face of Acting Judge Cantrill’s judgment that he failed to apply the correct test in determining whether or not leave to commence proceedings should be granted to Miss Holt. He added that there was apparently some question abroad as to whether or not the approach suggested by this court in Salido v Nominal Defendant (1993) 32 NSWLR 524 was different from the approach suggested by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 and that adopted by this court more recently in Sydney City Council v Zegarac (1998) 43 NSWLR 195. These observations by Powell JA led to this appeal being heard by a court of five, immediately followed by the same court hearing a somewhat similar appeal in Seib v Morton in which judgment is to be delivered immediately after judgment in this case. 4    Summary of facts.

Miss Holt was sixteen when she was injured. She was a passenger in a car which collided with another car. The police traffic collision report was in evidence before Acting Judge Cantrill.

5 Miss Holt was taken to the Campbelltown Hospital by ambulance. The ambulance report and the hospital notes were in evidence before Acting Judge Cantrill. 6 On 20 May 1992 Miss Holt saw a solicitor at Campbelltown who undertook her claim for damages. With a letter dated 12 June 1992 he lodged a claim form with the NRMA in accordance with s 43(1) of the Motor Accidents Act 1988 (the Act). The NRMA returned the form to him saying it did not comply with the requirements for such forms. After some argument, the solicitor lodged an amended claim form on 24 August 1992. 7 In September he made an application for Legal Aid. 8 The amended claim form was lodged outside the six month period allowed by s 43 for giving notice of a claim. However, after some further argument, the NRMA by letter dated 8 December 1992 accepted that a full and satisfactory explanation for the delay had been provided pursuant to the then s 43(2). Thus the first delay in the matter, which seems to have been the fault of the solicitor, was overcome. 9 In its same letter dated 8 December 1992 the NRMA also said that their investigations had revealed that the vehicle at fault in the accident was insured by the GIO but that because of the sharing arrangement between the NRMA and GIO the NRMA would continue to manage the claim. The letter ended by asking for various particulars of Miss Holt’s “present medical status” so that “we will be in a position to consider settlement of your client’s claim”. 10    To this point the case had gone ahead without undue problem. The NRMA had indicated it would make an offer of settlement after receiving further information. There was thus a reasonable prospect that Miss Holt could receive compensation for her injuries without the need for court proceedings. 11    However, in about November 1992 Miss Holt moved to Woy Woy and changed her solicitor. She left her case in this second solicitor’s hands. There was delay in his getting the file from the first solicitor. From Miss Holt’s point of view, nothing happened. In March or April 1993 she moved to St Helens Park. Then in January of 1994 she moved to Leeton. Each time she left forwarding addresses with Australia Post. 12    Miss Holt received a letter dated 10 May 1994 from the second solicitor asking her to sign an authority directing the first solicitor to transfer the files to the second solicitor. (This was addressed to the Woy Woy address.) Miss Holt annexed this letter to her affidavit filed in support of her application for extension of time. In another affidavit, by Mr Geddes, who later became her fifth solicitor, also filed in support of her application, the full contents of the second solicitor’s file were annexed. This file contained a copy of a letter dated 17 May 1994, again to the Woy Woy address, enclosing a copy of a letter from the GIO of 12 May 1994. (The circumstances in which the GIO took over the conduct of the matter from the NRMA do not appear in the appeal papers. Although formally the party to the proceedings at all times remains Mr Wynter, for convenience I will from here on refer to Miss Holt’s opponent as the GIO.) This letter offered $3,000 inclusive of costs in settlement of Miss Holt’s claim. Miss Holt does not mention in her affidavit having received this letter. 13    In her affidavit Miss Holt also said that she rang the second solicitor’s office from time to time but did not get past his office staff to speak to him personally until August 1995. At that time the second solicitor still did not have the file from the first solicitor. In a letter dated 24 August 1995 addressed to Miss Holt at her Leeton address, the second solicitor referred to his telephone conversation with Miss Holt and told her of the letter dated 12 May 1994 in which the GIO had made its offer in settlement. The solicitor advised her not to accept any offer until he had properly assessed her claim. (In this letter the solicitor asserted that Miss Holt had said to him that she had “not spoken to anyone from this office since 1992” and in one or two of his letters much later said she had not been in touch with him at all. This is different from her evidence which Acting Judge Cantrill accepted.) 14 The second solicitor did not refer in his letter of 24 August 1995 to the fact that s 52 of the Act (a) required a person commencing proceedings more than twelve months after the date on which the claim had to be made in accordance with s 43 to provide a full and satisfactory explanation to the court for the delay, and (b) further provided that the person was not entitled to commence proceedings in respect of a claim more than three years after the date on which the claim had to be made in accordance with s 43, except with the leave of the court. 15 The second solicitor wrote again to Miss Holt by letter dated 15 November 1995 enclosing a copy of a letter from the GIO dated 10 November 1995 in which the GIO proposed an informal settlement conference in December. At this time Miss Holt had become dissatisfied with the second solicitor and was in the course of retaining a third solicitor, which she did at the end of November 1995. 16 This third solicitor then set about obtaining the file from the second solicitor. By letter dated 17 July 1996 from the third solicitor to Miss Holt he told her that he had received part of the file from the second solicitor and had discovered that the remainder of it was with the first solicitor. He enclosed an authority for her to sign as a matter of urgency to get the remainder of the file from the first solicitor. The part of the file obtained from the second solicitor by the third solicitor had only been obtained after complaint by the third solicitor to the Law Society. It appears that the third solicitor obtained the balance of the file from the first solicitor in or about August 1996. 17 The office records of the third solicitor show that Miss Holt phoned his office twice in October 1996, speaking to a member of his staff, but not to him, inquiring about the progress of the case. 18 Nothing seems then to have happened until by letter dated 5 December 1996, apparently based on a standard form, the GIO wrote to the third solicitor saying that a medical examination had been arranged for Miss Holt. The last paragraph of this letter said:

“ Please also note that pursuant to s 49 of the Act court proceedings in respect of your client’s claim cannot be commenced or continued should your client fail to attend the above examination without reasonable excuse. ”

19    The third solicitor received this letter on 9 December 1996 and by letter of the same date wrote to his client telling her of the medical examination. 20    The doctor nominated by the GIO examined Miss Holt on 4 March 1997. The GIO paid $481 to her to cover her costs of travelling to Sydney from Leeton and return, for the examination. 21    The third solicitor then arranged for Miss Holt to be examined by Professor Ryan for the purpose of a medico-legal report. Miss Holt was examined by Professor Ryan on 30 April 1997. She paid the expenses of this trip from Leeton herself. By letter dated 14 May 1997 the third solicitor sent a copy of Professor Ryan’s report to the GIO. 22    A further medical appointment was made by the GIO for Miss Holt to attend Dr Roff on 4 June 1997. Her travelling expenses for this appointment were paid. Although, so far as I can see, what happened about this appointment does not appear in the appeal papers, both counsel in the appeal addressed this court on the basis it had taken place. 23    The next thing appearing in the appeal papers is that by letter dated 9 October 1997 the third solicitor wrote to Miss Holt telling her that “because the three year period [had] expired since her accident it [was] necessary for the leave of the court to be obtained before proceedings [could] be commenced”. He also explained that because some of the delay in prosecuting her claim had occurred while the file had been with him it would be prejudicial to her chances of success if he were to continue acting. He said he had sent the file to a fourth solicitor who was expecting a telephone call from her. He also said that it was essential that matters should now move quickly. 24    Miss Holt then received a letter from the fourth solicitor dated 14 October 1997. She spoke to this solicitor by telephone. Following that conversation she asked Mr Geddes, a solicitor at Griffith, to act for her. He, her fifth solicitor, appears to have acted from then on with all due care and despatch. However, he did not receive the file from the fourth solicitor until 4 January 1998. 25    The GIO wrote to the fifth solicitor by letter dated 9 February 1998 saying that breach of duty of care was admitted but that leave to commence proceedings was opposed. (The court was told this without objection, although the letter is not in the appeal papers; it is mentioned in a chronology prepared by the fifth solicitor (Combined AB 206) for the hearing of the application for extension.) A month later, as mentioned at the outset of these reasons, the notice of motion for leave to commence proceedings was filed, which Acting Judge Cantrill later dismissed. 26    The trial judge’s reasons.

In his reasons Acting Judge Cantrill accepted what Miss Holt said on a number of matters. He said he had no reason to doubt her evidence that over the period since the accident she had suffered pain and discomfort particularly in the knee and the sternum as a result of the accident. He also accepted that she had at all times maintained contact at least with the solicitors who acted for her, saying that although correspondence from the solicitors seemed to suggest that they did not accept that that was so, he accepted her version in that regard. Also, without making firm findings, he noted that on her evidence, “ It may well be that if her damage were properly established she would have a substantial claim ”. He said that, had the matter been litigated when it should have been, liability would not have been substantially in issue, and the issue at a trial would have been principally the degree of injury and disability and the amount of compensation.

27    He next noted that no evidence had been presented by the GIO, which had relied upon “the general prejudice” and also upon the assumption that because of “the lack of any apparent attempt by the plaintiff’s various legal representatives to press the matter” the claim was either very small or at the least not one “justifying a substantial expenditure in medical treatment and examinations”. 28    Next he mentioned that the GIO had relied upon Salido and Brisbane South as well as an unreported decision of the Court of Appeal (23 October 1997) Henricks v Agnew. The judge then went on to say that those cases could

“ be summed up on the basis that a plaintiff seeking exercise of a discretion in waiving the time limit prescribed by the Motor Accidents Act in relation to the commencement of proceedings arising out of motor vehicles accidents bears some degree of onus to establish that there is such little prejudice against the defendant that I should in the exercise of my discretion grant an application to extend the period of time to commence proceedings. ”

29    He next said that the evidence before him explained and excused Miss Holt personally from any responsibility for the lack of action in commencing the proceedings. He was of the view that the solicitors had some responsibility but was not prepared to find against them that they had been acting to the GIO’s prejudice. Nevertheless,

“ ... objectively insufficient had been done for a defendant to be able to say, ‘Well, it does not really matter very much to me that the time is now some two years beyond the limitation period’. ”

30    He went on:

“ ... it seems to me that there is such prejudice or potential prejudice to the defendant if I were to grant this application that it ought not to be granted. ”

31    Then, a little later, he concluded:

“ Every legal professional is aware these days, who has anything to do with the Motor Accident Act, that the Act requires claims to be brought within a limited period and requires notice to be given of those claims. It must be a corollary to that, that if notice is given and then nothing much done a defendant is entitled to say at some stage, ‘Obviously the plaintiff is not pressing this matter and I can disregard it’.
The defendant in my view has been prejudiced by the fact that until 1996 it had not been sufficiently apprised of the nature of the claim to arrange a medical examination on its part.
In those circumstances it seems to me appropriate that I should refuse the application. ”

32    Argument in the appeal.

In the appeal Miss Holt’s counsel accepted that for her to succeed a miscarriage of discretion had to be shown in accordance with the principles in House v The King (1936) 55 CLR 499. The principal point made in this respect was that the trial judge had shown in saying at one point that Miss Holt had “ some degree of onus to establish that there is such little prejudice against the defendant that I should grant her application ” that he was not applying the right test in exercising his discretion. Counsel submitted that the proper approach was that “ It must be seen as fair and just that an extension of time be granted. That means it must appear there can be a fair trial ”. Counsel also submitted that the trial judge had been influenced by a misunderstanding of the availability of medical evidence concerning Miss Holt’s medical condition following the accident.

33    On the question of possible differences between Salido, Brisbane South and Zegarac, counsel said that he did not seek to contest the proposition, referred to by this court in Kinnas v Petricca, unreported, 1 December 1998, that this court has regularly regarded the High Court’s decision in Brisbane South as applicable to the Motor Accidents Act. Counsel’s submission was that

“ Whilst there is no uniformity in the judgment in [Brisbane South] what they will come to by different routes is it must be seen as fair and just that an extension of time be granted. That means it must appear there can be a fair trial. ”

34    Counsel also referred to the fact that in Brisbane South Dawson J had agreed, in a qualified way, with the reasons of McHugh J, Toohey and Gummow JJ had written joint reasons, upholding the appeal, McHugh J had written separately, upholding the appeal, his reasons in some respects varying from those of Toohey and Gummow JJ and the fifth judge, Kirby J, had been of the view that the Queensland Court of Appeal had been correct. Counsel then submitted that no part of McHugh J’s reasons could be said to be the ratio in the case. He submitted that McHugh J’s reasons, taken alone, were not binding on any first instance judge. If counsel was correct in this, it would follow that the same comment would apply to the reasons of the other judges. There was no single majority judgment. 35    Counsel for Miss Holt also pointed out that before the trial judge the GIO had not relied on prejudice because of the delay in itself in the commencement of proceedings. He referred the court to the transcript of argument before the trial judge in which the GIO’s counsel is recorded as having said:

“ There’s some force in the proposition that we have notice of the claim from early days and we could have taken some steps during the running of the limitation period to have the plaintiff examined. I can’t put any prejudice arising from the fact that we only had her examined after the period expired. ”

36    What counsel at first instance is next recorded as saying relates to the point upon which he did rely before the trial judge and upon which the GIO again relied in the appeal:

“ What I do say though is that the plaintiff bears the onus in this application and can’t demonstrate that the initial records of the treating doctors are still around. ”

37    This was a reference to the fact that although it appeared from Miss Holt’s evidence that she had seen a number of doctors between 1992 and 1998, not all the reports from all the doctors had been put into evidence before Acting Judge Cantrill. Miss Holt had been asked in cross-examination if she knew whether the records of the various doctors were still in existence and had replied that she did not. 38    In regard to this her counsel submitted in the appeal that the fact that Miss Holt did not know whether or not the records existed did not supply any evidence at all to support the proposition either that they did exist or that they did not. 39    The argument for the GIO took up this last point. The argument was that there had been nothing communicated to the GIO prior to 1997 at any rate to indicate that Miss Holt’s claim was anything other than a minor claim. Although the GIO had had Miss Holt examined by two orthopaedic specialists in 1997 there had been no medical reports served on the GIO on Miss Holt’s behalf until 1998. The GIO had been hampered, it was submitted, in giving instructions for the 1997 examinations because it had not been able to instruct their nominated examining specialists properly. 40    When asked whether Miss Holt’s evidence that she had no knowledge one way or the other of the continuing existence of the relevant records could furnish any evidence that they did not exist, counsel replied, in my opinion quite accurately, that the questions put to Miss Holt on that matter made it plain that there was an issue being raised by the GIO about the existence of the records. However, he made the further submission, with which I do not agree, that her answers furnished some evidence. 41    In my opinion, once the issue was raised by the GIO, the question became whether there was any evidence before the trial judge upon which he could be satisfied, as a matter of probability, that the records, or a significantly large proportion of them were still in existence. I will return to this question later. 42    On the questions which have been raised concerning in particular Salido and Brisbane South, the GIO’s counsel submitted that

“ there is no tension between the application of Brisbane South and Taylor and any of the judgments in Salido. It fits nicely into [Gleeson CJ’s] guideline 4. ”

43    The GIO’s counsel did not make any submission about the difference asserted on behalf of Miss Holt between the reasons of Toohey and Gummow JJ on the one hand and McHugh J on the other. 44    Consideration of counsel’s arguments.

One thing that became clear in the course of argument was that in deciding this case it is necessary to examine the relationship between Salido and Brisbane South in some detail. I will first turn to Salido and state my understanding of what that case decided.

45    Salido v Nominal Defendant (1993) 32 NSWLR 524. It could be argued that of the three cases mentioned by Powell JA when leave to appeal was granted, the only logically binding authority is Salido, the only one decided on the Motor Accidents Act itself. Salido dealt directly with s 52(4) of the Act. Brisbane South was decided upon provisions in the Queensland Limitation of Actions Act 1974. Zegarac was decided on a set of provisions inserted in 1990 in the New South Wales Limitation Act 1969 which did not appear in the Queensland Limitation of Actions Act 1974 dealt with in Brisbane South. The Limitation Act 1969 does not apply to claims under the Motor Accidents Act (s 52(5)), and the limitation and extension provisions in the Motor Accidents Act are not in the same terms as the Limitation Act provisions which were the subject of South Brisbane and Zegarac. 46    In Salido the court reversed the decision of a trial judge refusing leave to an applicant to commence proceedings more than three years after the date on which the claim had to be made in accordance with s 43. Each of the three judges gave separate reasons for the court’s conclusion and stated the matters for consideration in exercise of discretion under s 52(4) in somewhat varying language. Gleeson CJ listed five guidelines which he said might be of assistance in obtaining consistency of decision making (at 532-533); Kirby P formulated “a non-exclusive check list of considerations” which he thought might be useful, and then listed ten such considerations (at 537-539) and Powell JA said that in substance there were but two questions for determination by the court (at 541). 47    Despite the differences of expression by the three judges, I think there can be derived from the lists of Gleeson CJ and Kirby P five propositions in common. In setting these out I will indicate after each proposition its number in the lists of the two judges, using their initials to identify them. The propositions are:

1. Section 52(4) confers a discretion which is to be exercised for the purposes of the Act; these purposes include forensic diligence; a corollary of the forensic diligence purpose is what Gleeson CJ called protection of defendants against the injustice of stale claims (G1, K2, K6).
2. The eventual question to be decided, in light of the purposes of the Act, is whether it is fair and just to grant leave (G2, K8).
3. The onus is on the applicant to show that it is fair and just to grant leave (G2, K4).
4. In considering whether the applicant has shown that it is fair and just to grant leave it is material for the court to take into account the delay and the applicant’s explanation for it (G1, G3, K7 and K8).
5. In considering whether it is fair and just to grant leave, the disadvantage to the defendant which would result from the granting of leave is a material but not a conclusive consideration (G4, K5, 7 and 8).

48    The two matters which Powell JA thought were the material questions for determination are, in the order in which he stated them, contained in propositions 4 and 2 above. 49    Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. This court’s acceptance of the general proposition that Brisbane South is a governing authority in regard to applications for leave to commence proceedings under s 52(4) of the Motor Accidents Act requires elucidation. The submissions of Miss Holt’s counsel merit careful consideration. This is because of the difference in the relevant provisions of the Queensland Limitation of Actions Act 1974 and the New South Wales Motor Accidents Act 1988, but also because of the difficulty in being able to state what was authoritatively decided (by which I mean decided by way of binding precedent) in Brisbane South on the question of the exercise of discretion in granting extensions of time under various statutes. To state this difficulty is not to criticise the decision of the High Court in Brisbane South. The reasons for that court’s reversal of the decision of the Queensland Court of Appeal are quite plain and were agreed on by all four judges in the majority. All four thought the Queensland Court of Appeal was wrong on two points which for convenience I will call the construction point and the comparison point. 50    Before coming to these points, I note that the case concerned Ms Taylor, who wanted to bring an action against the Brisbane South Regional Health Authority (the Hospital) for negligence of one of its surgeons. Her application for an extension of time was refused at first instance, then was allowed by the Queensland Court of Appeal whose decision was in turn reversed by the High Court. 51    In their joint reasons Toohey and Gummow JJ set out the provision of the Queensland Act which gave rise to what I have called the construction point. This was s 31(2) which read:

“ Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court -
(a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and
(b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;
the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly. ”

52    It was conceded both in the Queensland Court of Appeal and in the High Court that Ms Taylor had established each of the requirements in pars (a) and (b) of s 31(2); however, in the High Court she in turn conceded that fulfilment of the two requirements did not necessarily result in her being entitled to an extension. Toohey and Gummow JJ thought this concession was correct, saying that

“ The words ‘may order’ in subs (2) logically import an element of discretion on the part of the court. ” (at 546)

53    They then noted (at 547) that Davies JA and Ambrose J had said:

“ The scheme of the section, in our view, is that, upon compliance with paras (a) and (b), the applicant is entitled to an extension of time unless there is some matter justifying the exercise of a discretion against the granting of an extension. Once that is accepted, the evidentiary onus on this question is plainly on the respondent [that is, the present appellant] and, for the reasons we have given, was not discharged here. ”

54    In the opinion of Toohey and Gummow JJ this construction was mistaken. They said the discretion conferred by the subsection was a discretion to grant an extension of the limitation period not a discretion to refuse so that an applicant had to satisfy the court that grounds existed for an exercise of discretion in favour of the applicant (at 547). They continued:

“ There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant. Where prejudice is alleged by reason of the effluxion of time, the position is as stated by Gowans J in Cowie v State Electricity Commission (Vict) [1964] VR 788 at 793 in a passage which was endorsed by Gibbs J in Campbell v United Pacific Transport Pty Ltd [1966] Qd R 465 at 474:
‘It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice. ’” (at 547)

55    Toohey and Gummow JJ then referred to the way the trial judge had dealt with the matter. The trial judge had recognised that the Hospital was placed in a position of serious prejudice having regard to the lapse of time. This was apparently the basis on which he had refused the extension. Significantly for present purposes, because in this respect their reasons appear to differ from those of McHugh J yet to be discussed, they said that it had been open to the trial judge to take a different view on the facts but there could be no quarrel with the general approach he took (at 548). 56    Toohey and Gummow JJ then went on to consider further the reasons of Davies JA and Ambrose J. Here, they considered the comparison point. They said that not only did Davies JA and Ambrose J not approach the question of onus in accordance with established principles but they approached the question of prejudice by comparing the position the Hospital would have been in in an action instituted towards the end of the period of limitation and in an action instituted at the time of the application for extension. Toohey and Gummow JJ were of opinion that s 31(2) neither spoke of nor warranted such a comparison. They said:

“ Once an applicant satisfies pars (a) and (b) the court has a discretion to extend the time for the bringing of an action. The material consideration (the most important consideration in many cases) is whether, by reason of the time that has elapsed, a fair trial is possible. Whether prejudice to the prospective defendant is likely to thwart a fair trial is to be answered by reference to the situation at the time of the application. It is no sufficient answer to a claim of prejudice to say that, in any event, the defendant might have suffered some prejudice if the applicant had not begun proceedings until just before the limitation period had expired. ” (at 548-9, reference omitted)

57    The final step in the reasons of Toohey and Gummow JJ was to recognise that because the Queensland Court of Appeal had erred in its approach to s 31(2) the appeal had to be allowed and the High Court had to decide what orders should be made in place of those made by the Court of Appeal. The choice for the High Court would be between reinstating the trial judge’s decision or, if he also had fallen into error for reasons other than those relied on by the Queensland Court of Appeal, the High Court itself exercising the discretion. Their conclusion was that because in their view the exercise of discretion by the trial judge had not miscarried in any material respect, and, again significantly, for the reason already mentioned, “even though it was open to him to reach a different conclusion” (at 550), the High Court should not substitute its own exercise of discretion for that of the trial judge and the trial judge’s discretion should be reinstated. 58    In reaching this conclusion Toohey and Gummow JJ considered an argument that had been put on behalf of Ms Taylor that the trial judge’s exercise of discretion had miscarried because he had failed to balance the prejudice to the Hospital against the prejudice to her. They were of the view that even after Ms Taylor had satisfied par (b) of subs 2 “a weighing process” (of prejudice against prejudice) was not called for. They said:

“ The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent. ” (at 550)

59    They again indicated that although there had to be some prejudice to the Hospital by reason of the delay, it would have been open to the trial judge to reach a different conclusion; but because he had not made any error of principle in regard to s 31(2) or in the way he considered how his discretion should be exercised, there was no basis upon which it should not be restored. 60    In McHugh J’s reasons he dealt first with the construction point. His opinion on this was the same as that of Toohey and Gummow JJ. He said:

“ With great respect to their Honours, s 31 should not be read as giving an applicant a presumptive right to an order once he or she satisfies the two conditions laid down in s 31(2) of the Act. An applicant for an extension of time who satisfies those conditions is entitled to ask the court to exercise its discretion in his or her favour. But the applicant still bears the onus of showing that the justice of the case requires the exercise of the discretion in his or her favour. ” (at 551)

61    McHugh J then went on to explain his understanding of the “context of the rationales for the existence of limitation periods” in the light of which the discretion to extend time must be exercised. In the course of this discussion he dealt also with the comparison point, where again his opinion was the same as that of Toohey and Gummow JJ. 62 Also in the course of this discussion he made a number of observations relevant to the way discretion should be exercised in dealing with Limitation Act applications for extension. It is in these observations that there appears a distinct difference of emphasis from that shown in the reasons of Toohey and Gummow JJ. 63 McHugh J stated the general proposition that courts and commentators have perceived four broad rationales for enacting limitation periods (at 552). He said these were: (i), relevant evidence is likely to be lost (at 552), (ii), it is oppressive to allow an action to be brought against a defendant long after the circumstances which gave rise to it (at 552), (iii), people (the examples given were insurers, public institutions and businesses, particularly limited liability companies) should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them (at 552) and (iv), the public interest requires that disputes be settled as quickly as possible (at 553). 64 McHugh J put particular emphasis on the deterioration in the quality of evidence with the passing of time. Sometimes, he said,

“ ... the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists .” (at 551)

Later he said that in the case in hand the first instance judge held that the Hospital was placed in a position of serious prejudice because of the lapse of time and added
“ That being so, his Honour, quite naturally, took the view that an extension of time should not be granted. ” (at 554)

65    And then, a little later, having earlier mentioned that the purpose of extension provisions was to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of the rigid time limit within which an action was to be commenced (citing Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 at 635) he said:

“ To subject a defendant once again to a potential liability that has expired may often be a lesser evil than to deprive the plaintiff of the right to reinstate the lost action. This will often be the case where the plaintiff is without fault and no actual prejudice to the defendant is readily apparent. ” (at 555)

66    It is in the next sentence that he indicates what may be a significantly different opinion from that of Toohey and Gummow JJ. This sentence is, naturally enough, very frequently relied on by those opposing an extension of time. He said :

“ But the justice of a plaintiff’s claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact and who is not guilty of fraud, deception or concealment in respect of the existence of the action. ” (at 555)

67    And, a little later, in a passage also frequently cited by opponents of extensions:

“ When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff’s action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice. In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underling limitation periods that the plaintiff’s lost right should not be revived than that the defendant should have a spent liability reimposed upon it. This is so irrespective of whether the limitation period extinguishes or merely bars the cause of action. ” (at 555)

68    Then, reverting to the case in hand,

“ Once the learned judge had made a finding of actual prejudice, his decision to dismiss the application was inevitable ... The finding of actual prejudice and the possibility of other prejudice to the defendant gave the defendant a strong - in my view overpowering - case for resisting the application. ” (at 556)

69    This is where the divergence between the opinion of Toohey and Gummow JJ and the opinion of McHugh J is clearest. In the former’s opinion it was made clear, (at 548 and 550) that although the trial judge had not erred, on the facts before him, in refusing to grant the extension application, it would nevertheless have been open to him on those facts to have formed the opinion that an extension should be granted; McHugh J on the other hand made it equally clear that in his opinion only one answer was possible on those facts. Thus it appears that while all three regarded delay as a weighty factor in considering how the discretion should be exercised, McHugh J attached almost decisive weight to it. 70    In these circumstances it is of some significance that Dawson J was precise in his statement of agreement with McHugh J’s reasons. Dawson J said that he agreed with McHugh J, for the reasons which he gave, that s 31 of the Queensland Act did not confer upon an applicant for an extension a presumptive right to an order once the two conditions laid down in subs 2 were satisfied. He thus agreed with McHugh J (and also Toohey and Gummow JJ) on the construction question. His next sentence seems to be his own comment, to the effect that s 31 conferred a discretion to extend time, only to be exercised in favour of an applicant where justice was best served by so doing. The applicant had the onus of showing this. Also apparently as his own comment, he then said that

“ To discharge that onus the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant. ” (at 544)

71    He then returned to agreement with McHugh J on the proposition that to allow the commencement of an action outside the limitation period is prima facie prejudicial to the defendant. He then said, in his second last sentence, that for the reasons given by McHugh J the Queensland Court of Appeal was in error. Although I do not think it is possible to be sure about the scope of this sentence, it seems to me to be indicating agreement with McHugh J on the construction and comparison points. 72    Thus, it seems to me that Dawson J did not commit himself to the general observations by McHugh J about the way in which the discretion under s 31(2) should be exercised, or, in particular, to those of McHugh J’s views about the significance of delay which attached greater weight to that factor than Toohey and Gummow JJ did. If I am unduly restrictive in my reading of Dawson J’s reasons, the position would still be that the issues on which the majority agreed were the construction and comparison issues, and that on the question of the correctness of the trial judge’s decision, although in a broad sense they all arrived at the same result, their reasons for doing so were in some respects evenly divided. 73    When this view of Brisbane South is applied to the five propositions I have set out in paragraph 48 as being those for which, in my opinion, Salido stands, it seems to me that all four of the majority in Brisbane South support propositions 1, 2, 3 and 4. In regard to proposition 2, Brisbane South probably requires the words “and whether there can be a fair trial” to be added. 74    As to proposition 5 it seems to me Toohey and Gummow JJ’s reasons clearly support it, whereas McHugh J’s views would probably require it to end with the words “is a highly material and in a great many cases an almost conclusive consideration”. 75    Since however there is no majority opinion from the High Court on this point, it seems to me that Salido remains as authority for proposition 5 without addition. 76    Sydney City Council v Zegarac (1998) 43 NSWLR 195. Zegarac is less important, for present purposes, than Salido and Brisbane South. This is for two main reasons. One is that Zegarac was a decision upon subdivision 2 in division 3 of Pt 3 of the New South Wales Limitation Act 1969; subdivision 2 dealt with a class of case not previously the subject of extension provisions and was inserted in 1990. It contained s 60E which listed eight subject matters to which a court must have regard in exercising discretion to grant or refuse an extension along with “all the circumstances of the case”. The statutory framework is quite different from that in the Motor Accidents Act. The other reason is that the question whether the ratio decidendi of Brisbane South was applicable to subdivision 2 was not in issue in the case (see per Mason P at 197 and 200). 77    The appeal in Zegarac was upheld, by majority, (Mason P and Powell JA, myself dissenting). Mason P and Powell JA wrote separate opinions from which no ratio decidendi concerning either Brisbane South, Salido or the Motor Accidents Act can be obtained. Mason P referred to “a distinction of importance between the two sets of judgments” (at 199) in Brisbane South and dealt briefly with the same apparent distinction that I have tried to explain at greater length. In regard to subdivision 2 he was of the view that

“ proof of actual prejudice, even ‘significant’ prejudice, does not dictate the rejection of an application for extension of time. All of the circumstances of the case must be taken into account, including each factor mentioned in s 60E(1) to the extent that it is relevant to the circumstances of the case. ” (at 199)

78    He did not accept the idea that the notion of “balancing” should be used in weighing prejudice. He accepted that the primary focus in weighing prejudice was its impact upon a fair trial. Powell JA agreed with him on this (at 241). The way in which each of them spoke in regard to this matter suggests that this feature of their reasons should be applied also to applications for leave to commence proceedings under the Motor Accidents Act. Beyond its reinforcement of the idea that a prejudice-balancing process is impermissible and its adoption of the proposition that the primary focus of such applications generally involves consideration of the likelihood of a fair trial, I do not think Zegarac adds anything to what can be obtained from Salido itself, in the light of Brisbane South. 79    A fair trial. No submissions were made to the court in the present appeal dealing with the content of the idea of a fair trial in the context of an application for leave to commence proceedings. Brisbane South itself demonstrates that different judges have somewhat different ideas on the matter. One thing seems to be clear; that is that the term is a relative one and must, in any particular case, mean a fair trial between the parties in the case in the circumstances of that particular case. Further, for a trial to be fair it need not be perfect or ideal. That degree of fairness is unattainable. Trials are constantly held in which for a variety of reasons not all relevant evidence is before the court. Time and chance will have their effect on evidence in any case, but it is not usually suggested that that effect necessarily prevents a fair trial. 80    Criminal trials, for example, are almost routinely allowed to proceed although considerable time has passed since the happening of the alleged offence. No doubt there are quite different public policy factors at work, but, even so, there must be considerable similarity between the problems caused by delay to the defending parties in criminal and civil trials. When an application is made for the stay of a criminal trial on the ground of the prejudice flowing from delay, the response very frequently is to allow the trial to proceed on the basis described by Toohey J in Jago v District Court (1989) 168 CLR 23 at 71. He said:

“ ... where an accused has suffered some prejudice in his defence by reason of delay in bringing his case to trial (fair trial) it will often be possible to cure that prejudice by evidentiary rulings and by directions to the jury regarding the way they should approach the evidence adduced. ”

81    Toohey J continued:

“ But it is conceivable that delay has been so great and consequent prejudice to an accused so manifest that directions cannot ensure a fair trial. In that situation a stay of proceedings is the only remedy that meets the situation .” (ibid; at 71-72)

Gaudron J made observations to a similar effect, at 78. See also Longman v R (1989) 168 CLR 179, where a man was convicted in 1988 for offences allegedly committed in 1962. The High Court ordered a new trial because the jury had not been adequately directed about the need to scrutinise the evidence with great care because of the delay. In joint reasons Brennan, Dawson and Toohey JJ said:
“ To leave a jury without such a full appreciation ... was to risk a miscarriage of justice. ” (at 91)

82    In ordering a new trial, where proper directions would be given, they must have been of the view the delay would not then cause a miscarriage. Deane J and McHugh J were, on this point, of similar views. 83    Unreported decisions in the New South Wales Court of Criminal Appeal, Abbott 5 July 1993, Johnston 31 July 1998 and Geoghegan (1999) NSWCCA 20, all support the view that problems caused to the defence by delay can frequently be sufficiently satisfactorily dealt with by trial judges giving appropriate directions and rulings, as to prevent the trial being unfair. 84 It seems to me that a court considering an application under s 52(4), (when governed by the Act in the form relevant to the present case) must ask whether the applicant has discharged the onus of showing that as between the parties it would be fair and just for the trial to be held, and that the trial would be fair, and in considering whether the trial would be fair, must take into account the circumstances of the parties and what they have done relative to one another about the claimed cause of action in the period between the events relied on as giving rise to it, and the date of applying for leave to commence proceedings. 85 The exercise of discretion in the present case.

First, in my opinion, the parts of the trial judge’s reasons which I have set out earlier show that in exercising his discretion he did not give proper weight to the considerations which (in my view) Salido requires and imposed a higher burden on Miss Holt than the facts required.

86    Secondly, the trial judge appears to have been influenced by the submission put for the GIO that Miss Holt had failed to show that all relevant medical records still existed. This submission, with its asserted consequences, indeed appears to have been the principal submission before the trial judge, as it was in this court. 87    As earlier indicated, I think counsel for the GIO was right in saying that at the trial the GIO had made the existence of the records an issue. However, I do not think he was right in the submission that there was no evidence that the records of those doctors still existed. 88    The GIO said that the unavailability of the records of a number of doctors Miss Holt had seen about her injuries would be prejudicial to the GIO’s preparation of its case against Miss Holt’s case on damages. The next step in the submission involved the idea that in the absence of evidence from Miss Holt (on whom the onus admittedly lay) that the records existed, then she had failed in an essential element of proof to her basic case on the leave application that it would be fair and just for leave to be granted. 89    However, something needs to be said about the records of the named doctors. There were six of these doctors. One was Dr Chaudry, a GP at Campbelltown whom Miss Holt first saw immediately after the accident, and about five times in all. Dr Chaudry sent Miss Holt to Mr Giblin, an orthopaedic surgeon to whom she went twice. Miss Holt saw Dr Crooks, a GP at Umina, once. When at Helens Park she saw Dr Matthews, a GP, many times, at one stage for laser treatment every day for three weeks. He also sent her to Mr Giblin. When she moved to Leeton she saw Dr Sangster, A GP. She had last seen him two years before she gave her evidence before Acting Judge Cantrill. She had seen Dr Krishnan, a GP at Bankstown once, in 1997. 90    The material before Acting Judge Cantrill showed that in May 1998 Drs Chaudry and Sangster still had their records and that Dr Chaudry at least had a note of Dr Giblin’s advice to the patient. 91    Miss Holt saw Dr Crooks once, probably in early 1993, in view of the chronology of her movements. Her application was heard by Acting Judge Cantrill in July 1998. When nothing more is known about that doctor and that visit, is it a fair inference that there was still available in July 1998 some record of the consultation? There must be a possibility, but I would not say a probability. 92    Miss Holt’s visits to Dr Matthews, when she lived at Helens Park must on the evidence have been between March or April of 1993 and January of 1994. On Miss Holt’s evidence of the number of visits, and in view of the paperwork necessarily created by her treatment, it seems to me likely that reports were still available from that doctor’s practice in July 1998. Of course the doctor may have moved, retired or died in circumstances where the practice records were dispersed, but taking into account the dates and type of treatment, along with the ordinary probabilities of life, it seems to me the chances favour the probability that the doctor’s records were still available in July 1998. 93    In regard to Dr Krishnan, it is in my opinion proper to infer, on the probabilities, from the fact that Miss Holt saw her in 1997, that the doctor’s records would still be available in 1998. 94    The materials before the trial judge and the inferences properly to be drawn from them, were sufficient for a conclusion that the GIO would be able to prepare its case for trial with reasonable practicality. 95    Acting Judge Cantrill said in his reasons that the GIO had been prejudiced by the fact that until 1996 it had not been sufficiently apprised of the nature of the claim to arrange a medical examination on its part. As to this, notice of the claim had been given in 1992, and the GIO had made an offer of settlement in May 1994. Further, in considering whether Miss Holt had shown that it was fair and just for her to be given leave to proceed, and that a consequential trial would be fair, it seems to me to be of some significance that although the GIO arranged for medical examinations of Miss Holt in 1996 and 1997, which were carried out, there does not appear in the evidence any complaint from the GIO in communications before or after those examinations, of any difficulty that either of the doctors felt because of lack of records. 96    It seems to me that the trial judge should have acted on the basis that from the material before him it was more likely than not that the bulk of any medical records which the GIO wanted in preparation of its case could be supplied to it. 97    Having reached that point, it seems to me that the trial judge made an error of principle in his approach to the way he should exercise his discretion and then, in any event, exercised his discretion by reference to a complaint of the GIO which was not soundly based. 98    Conclusion on discretion.

On the facts as they appear to me to have been before the trial judge, it is my opinion that Miss Holt made out her claim that it would be fair and just for her to be allowed to commence her proceedings and that any trial resulting from those proceedings would fall into the category of a fair trial.

99    Caveat.

Salido was decided in 1993 in respect of an accident in 1990. Some of the provisions taken into account by this court in Salido in construing s 52(4) have been repealed or amended since that case was decided. However, I do not think the changes before the passing of the Motor Accidents Amendment Act 1995 No 66 (Act 66/95) have a sufficient bearing on the construction of s 52(4) to detract from Salido’s position as a continuing authority on that subsection, at least until that time.

100 As to cases since then it will be necessary to consider the possible effect of later changes to the Act. 101 For instance, s 52(4B) (introduced by Act 66/95) was in the following terms:

“ The leave of the court must not be granted unless:
(a) the claimant provides a full and satisfactory explanation to the court for the delay, and
(b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25 per cent of the maximum amount that may be awarded for non-economic loss under section 79 or 79A as at the date of the relevant motor accident. ”

102    The five propositions set out in par 47 above derived from Salido with the gloss stated in par 73, will in cases subject to Act 66/95 and later amendments, need to be read subject to the above subsection and any other relevant amendments since Act 66/95.
103    Proposed orders.

I would therefore propose that Miss Holt’s appeal be upheld, the orders of Acting Judge Cantrill be set aside and that this court grant Miss Holt leave to commence proceedings against the GIO’s insured, Mr Wynter, Miss Holt’s costs of the appeal to be borne by the respondent to the appeal.

104    A question arises as to Miss Holt’s costs at first instance. I am not aware of any settled practice concerning the costs of a successful applicant. It seems to me that the appropriate order in such cases must depend very much on the circumstances of the case. 105    The only instances of which I have any actual knowledge occurred in two cases in which I sat on the appeals, State Rail Authority v Gaudron (unreported, 12 August 1997) and Sydney City Council v Zegarac (1998) 43 NSWLR 195. 106 In the first, Dent DCJ found in favour of the plaintiff and ordered that costs of the application be costs in the cause. The appeal from his judgment was dismissed. (I do not recall any argument about his costs order.) 107 In the second case, Kirkham DCJ also ordered that the costs of the plaintiff, successful before him, should be costs in the cause. His judgment was reversed in this court, making it unnecessary for this court to consider his costs order. However, so far as I can recall, no complaint was made about it at the hearing. 108 The same order seems to me to be appropriate in the present case. 109 MEAGHER JA: I agree with the orders proposed by Priestley JA, for the reasons given by Sheller JA. 110 HANDLEY JA: I agree with Sheller JA. 111 SHELLER JA: I have had the benefit of reading Priestley JA’s judgment in draft. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, on an application by the respondent for an extension of time under the Queensland Limitation of Actions Act 1974, the trial Judge had found that the appellant was placed in a position of serious prejudice having regard to the lapse of time which had occurred. In my opinion and with due respect, the majority of the Court decided that this finding required that the application be refused. Quite clearly, McHugh J thought significant prejudice to the potential defendant was decisive. At 555 his Honour said:

“When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice.”

The bite is in the next two sentences:

“In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff’s lost right should not be revived than that the defendant should have a spent liability reimposed upon it.”

112    I do not read Dawson J as differing from this. At 544 his Honour said:

“The onus of satisfying the Court that the discretion should be exercised in favour of an applicant lies on the applicant. To discharge that onus the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant. I agree with McHugh J that, once the legislature has selected a limitation period, to allow the commencement of an action outside that period is prima facie prejudicial to the defendant who would otherwise have the benefit of the limitation.”

113    Toohey and Gummow JJ at 547 adopted what had been said by Gowans J in Cowie v State Electricity Commission (Victoria) [1964] VR 788 at 793:

“It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and is then for the applicant to show that these facts do not amount to material prejudice.”

114    Their Honours did not treat an extension as prima facie prejudicial to the potential defendant. The prospective defendant must show some evidence of prejudice. But if the potential defendant did show significant prejudice and the applicant failed to show otherwise, I do not think that their Honours’ view of the significance of that prejudice or its decisiveness was any different. At 550 their Honours said:

“The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent.”

115    Their Honours then quoted from the judgment at first instance where the Judge said that the respondent was placed in a position of serious prejudice having regard to the lapse of time which had occurred. Having said that the Judge did not err in his understanding of the relevant legislative provision, Toohey and Gummow JJ went on, at 550:

“Nor did he err in the way in which he dealt with the question of prejudice even though it was open to him to reach a different conclusion.”
This was directed to whether or not it was open to the trial Judge to reach a different conclusion about whether the respondent was placed in a position of serious prejudice. In an earlier passage in the joint judgment at 548 their Honours said, having referred to this part of the judgment at first instance: “It was open to his Honour to take a different view on the facts but there can be no quarrel with the general approach he took.” I do not believe that their Honours intended to suggest that even if the respondent was placed in a position of serious prejudice it remained open to the Court to extend the time.

116    Salido v Nominal Defendant (1993) 32 NSWLR 524 was quite different factually. At first instance, leave was refused because the applicant had not demonstrated he was entitled to it; see 530. No mention was made of prima facie prejudice. That may have been implicit. In the lists of guidelines to which Priestley JA has referred, Gleeson CJ at 532, having identified the immediate purpose of the legislation as being to protect defendants against the injustice of stale claims and the additional purpose to promote forensic diligence, said:

“2. Bearing in mind those statutory purposes, the question is whether, in the circumstances of each individual case, the applicant for leave has demonstrated that it is fair and just that leave should be granted.”

This may be more broadly stated than the “real question” which Toohey and Gummow JJ described. But bearing in mind the immediate purpose to which the Chief Justice referred, I do not think an applicant would demonstrate that it was fair and just that leave should be granted if to do so would result in significant prejudice to the potential defendant. Rather, these tests are directed to a broader context such as the situation where there has been long and unexplained delay which has not resulted in significant prejudice to the potential defendant. It may be that in the absence of significant prejudice to a potential defendant, in the words of Toohey and Gummow JJ which I have quoted, there is no reason why the discretion should not be exercised in favour of the applicant.

117    In Salido, Kirby P at 538-9 said that it was relevant, in considering whether or not to grant leave, to take into account any proved, apparent or inferred prejudice to the putative defendant. As his Honour’s dissent in Brisbane South Regional Health Authority bears out (see 186 CLR 564 and following), Kirby P’s judgment in Salido is not consistent with the view of the majority of the High Court as to the decisiveness of significant prejudice to the potential defendant. 118    Powell JA in Salido at 541 said that two questions needed to be determined by the Court:

“1. Whether a sufficient explanation has been given for the failure to commence proceedings in due time; and
2. If so, whether, having regard to all the circumstances of the case, it is fair and just to grant, or to refuse, the application.”

His Honour did not address the particular situation of a finding of significant prejudice to the potential defendant.

119    In my opinion, the effect of the decision of the High Court in Brisbane South Regional Health Authority is that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant. 120    Accordingly, in my opinion, if Judge Cantrill correctly concluded that the respondent in this case would have suffered significant prejudice as a result of the extension applied for, the application was rightly refused. However, for the reasons Priestley JA has given, I am of the opinion that there was no sufficient basis for that conclusion. 121    I set out hereunder the orders that I propose. In relation to costs ordinarily a successful applicant, who has allowed him or herself to get out of time, should pay the costs of the application unless the respondent’s opposition was wholly unreasonable. Although Judge Cantrill was satisfied that the evidence explained and excused the applicant from any responsibility for the delay, the fact remains that one or more of the solicitors she retained were responsible for the delay. The respondent was not. In the circumstances, particularly having in mind the question raised about the availability of medical records, I do not regard the respondent’s decision to resist the application as unreasonable. 122    In my opinion the following orders should be made:

1. Appeal allowed;
2. Set aside order 1 made by Acting Judge Cantrill on 20 July 1998 but confirm order 2 that the plaintiff pay the defendant’s costs of the application; such order 2 not to be enforced prior to final judgment in the action without the leave of the District Court;
3. In lieu thereof, order that the appellant have leave to commence proceedings against the respondent for damages for injury suffered in a motor vehicle on 8 February 1992 pursuant to s52(4) of the Motor Accidents Act 1988;
4. The respondent to pay the appellant’s costs of this appeal but to have a certificate under the Suitors Fund Act 1951 if so qualified.

123    BROWNIE AJA: I agree with Sheller JA.

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